As a family lawyer, I often hear of children who are taken from their parents by a local authority in public law cases. Sometimes these children have been physically and mentally abused, other times abused by gross neglect. Each case is heart-breaking in its own way but once the facts have been laid out, it becomes clear that removing the child was probably the best decision.
I say probably because the family courts do not get good press and I know from the many heartbroken parents and family members who write pleading messages to this blog that they do not, and never will, accept the decision of the court if it has gone against them and they are unlikely to see the children again. Or at the very least won’t see them until the children are old enough to do something about it for themselves, should they ever choose to do so. Some children do want to know about their biological backgrounds while some, happy with their lot, do not.
But that makes these decisions very difficult for the courts. Such decisions are made in the interests of the child and also in the interests of the public, who as taxpayers fund the local authority to take care of children who cannot take care of themselves.
If the parents are unable or unwilling to provide the loving, caring environment their child needs, and family members are in the same boat, then adoption is probably the best course of action. Two willing potential parents who can provide a better standard of care for the child than the birth family – what can be wrong with that?
Yet because of the nature of adoption, the complete change in legal parentage and the knock-on practical impact as a child literally begins a completely new life, there are those in a position to make a judgement call in a local authority or sitting as a Judge in a court, who will still go to great lengths to avoid what to others is the glaringly obvious: namely the chance of a bright future. So much has the position on adoption become muddied in law in fact, that recently in a very carefully crafted speech, child specialist Lord Justice McFarlane felt it necessary to clarify the law.
So with all this swirling around, the threshold for removal of a child into the care of the local authority is, we are led to believe, a high one and the decision to adopt a child thereafter is taken with the greatest of care and with consideration of all other options. These include retaining some form of contact with the birth parents or even placing a child with another member of the birth parent’s family. But let’s never forget that decisions about the legitimacy of removal of a child are in fact made only to a civil standard i.e. on the balance of probability that certain events have occurred. The standard applied is not the criminal standard – beyond all reasonable doubt. So when a family court makes its decision, the standard applied should be borne more in mind, even if, in many cases, it is clear beyond doubt. In others it is less so.
This standard was certainly borne in mind by barrister Sarah Phillimore, who wrote a very incisive post about an adoption case we have covered several times on the blog: Re X (No 3).
It is a tragic tale which, at first, must have seemed very straight forward. A baby ‘X’, was taken into care by a local authority because X was found to have several injuries and they suspected the parents were responsible.
The parents faced criminal charges as a result and the local authority, in the meantime pending trial, successfully applied for care and placement orders which allowed them to find a new home for X. The parents were later acquitted of all charges, but by then X had been officially adopted. The child has now been with its new parents for five years. To all intents and purposes this child has never had any other parents.
Initially, following their acquittal, the birth parents wanted to challenge the adoption of their child and this was to be dealt with on a two stage basis – first a fact finding hearing to decide if the decision to remove the child had indeed been the correct outcome and then if so, the parents made it clear, that despite all the hurdles they would face, they intended to challenge the adoption itself. I went on ITV Good Morning Britain last year to discuss the case when the parents were acquitted and spoke about their ultimate intention. I thought setting aside the adoption would be very difficult in law if not impossible. Adoption orders are by their very nature in law intended to be final. There are few exceptions. In this case I felt too much water had flowed under the bridge. I was proved right not by a clarification of the law, which I suspect would have had the same outcome, but by the turn of events.
A week before the fact finding hearing was due to happen the birth parents movingly wrote to the court requesting to withdraw and for the hearing not to proceed. Instead they both stated they accepted that in the interests of X and given all the time that had passed the child should remain with its adoptive parents. It was beautifully written correspondence and it was difficult not to feel deeply for them and, of course, for the child. It was entirely child focussed.
However, things may not quite be as they seem. The local authority and the adoptive parents both sought orders from the Court that, despite the birth parents’ withdrawal, the fact finding hearing should still go ahead since it seems new evidence has come to light that was not available to the criminal court at the time. Having heard the submissions, President of the Family Division Sir James Munby ordered it to go ahead in the interests of the child and of the public.
Sarah Phillimore powerfully makes the point in her post that all the court can do in fact is make a decision “on the balance of probabilities”. This would still leave room for doubt and she argues that such an investigation, if it takes place, should not be on an adversarial basis as it is currently set to be.
I wonder what constitutes the best interests of the child removed from its natural parents. X will have to come to terms with the adoption and as with all adopted children it won’t be an easy process, so it has to be carefully managed. Does it make a difference to this child if the fact finding goes ahead? I think it does, but not to benefit the child. I think it could potentially be harmful. The court had the opportunity to close off this hearing. It could have saved on huge and meaningless costs to the public purse by simply accepting the request of the birth parents. And despite all the trauma the adoptive parents have undoubtedly been through, I wonder too about their decision to pursue this hearing. Is it ultimately wise?
By continuing on and risking making findings adverse to the birth parents, without them willingly engaging in the process and on a balance of probability test, I wonder how could that possibly benefit the child in the future? In such a case, instead of comforting letters to read demonstrating their love for the child, there will always be room for doubt either way. There will always be room for bitterness to creep in however justified or not because, in reality, none of us including the child will ever really know what happened. There was instead an elegant answer to this question and it wasn’t taken up. Instead we will have yet another expensive, sterile “fact finding” hearing which seems to be all the rage these days. The ones that take place without the main players present and place blame squarely upon them.
There can surely be an excellent argument made that the broken system encountered by the family, with the lack of legal aid and a completely botched timetable between family and criminal courts, has already badly failed this child. That should be enough to bring this tragic case to an end.
Read the full judgment here.